KOSTADINOV proti Bulharsku

FIFTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 55712/00
by Stefan Lazarov KOSTADINOV
against Bulgaria

The European Court of Human Rights (Fifth Section), sitting on 22 May 2006 as a Chamber composed of:

Mr P. Lorenzen, President,
Mrs S. Botoucharova,
Mr V. Butkevych,
Mrs M. Tsatsa-Nikolovska,
Mr R. Maruste,
Mr J. Borrego Borrego,
Mrs R. Jaeger, judges,
and Mrs C. Westerdiek, Section Registrar,

Having regard to the above application lodged on 12 October 1999,

Having regard to the fact that no observations were submitted by the respondent Government,

Having regard to the observations submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Stefan Lazarov Kostadinov, is a Bulgarian national, who was born in 1976 and lives in Pazardzhik. He was represented before the Court by Mrs V. Kelcheva and Mr V. Stoyanov, lawyers practising in Pazardzhik.

The respondent Government were represented by their Agent, Ms M. Karadjova, of the Ministry of Justice.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

1. The criminal proceedings against the applicant and his detention in the context of these proceedings

On 18 January 1999 a preliminary investigation was opened against the applicant for robbery. On the same day, the applicant was charged with the offence and remanded in custody upon a decision of an investigator which was confirmed by the Prosecutor’s Office. It was alleged that the applicant, together with another individual, had robbed a person of 17,480,000 old Bulgarian levs [“BGL”: approximately 8,964 euros (“EUR”)] and in the process had used force and rendered the victim unconscious. In ordering that the applicant be remanded in custody the investigator cited, inter alia, the personality of the detainee, the gravity of the offence and, in general terms, the likelihood that he might abscond or re-offend. The decision contained a signed statement by the applicant that he was informed of the charge against him at 3.30 p.m. on the same day.

The applicant filed an appeal against his detention on 27 January 1999, which was dismissed by the Pazardzhik District Court on 3 February 1999. The court found, inter alia, that the applicant was charged with a serious intentional offence, which warranted mandatory detention and that it was likely that he might commit offences against some of the witnesses, thereby obstructing the investigation. In conclusion, no evidence was established to exist warranting an exception to the requirement of mandatory detention.

On 1 March 1999 the applicant filed another appeal against his detention arguing, inter alia, that in the course of the preliminary investigation it had been established that the amount which he had allegedly taken from the victim had only been BGL 5,000,000 (approximately EUR 2,564) because the victim had been robbed on more than one occasion on the day in question.

The applicant’s appeal was dismissed by the Pazardzhik District Court on 15 March 1999, which found, inter alia, that the applicant was charged with a serious intentional offence, which warranted mandatory detention, that he might obstruct the investigation and that due to his lack of income he was likely to re-offend. In conclusion, no evidence was established to exist warranting an exception to the requirement of mandatory detention.

On 29 March 1999 the applicant filed his third appeal against his detention claiming, inter alia, that there was no evidence that he would abscond, re-offend or obstruct the investigation, that he suffered from jaundice and that his health was deteriorating as a result of his detention.

The applicant’s appeal was dismissed by the Pazardzhik District Court on 23 April 1999, which found, inter alia, that the applicant was charged with a serious intentional offence, which warranted mandatory detention, that he was in good health and that there were indications that he might commit offences against some of the witnesses, thereby obstructing the investigation. In conclusion, no evidence was established to exist warranting an exception to the requirement of mandatory detention.

The applicant contended that the charges against him were amended on 9 June 1999. The preliminary investigation against the applicant was partially terminated on 30 June 1999. The only outstanding charge against him concerned common robbery of BGL 17,480,000 (approximately EUR 8,964).

The applicant filed his fourth appeal against his detention on 1 July 1999, which was examined by the Pazardzhik District Court on 27 July 1999. The court found in favour of the applicant and released him on bail of 200 new Bulgarian levs (approximately EUR 102). It found, inter alia, that the applicant had no criminal record, had good evaluations of his character and the preliminary investigation had already been completed.

The applicant was released on the same day, 27 July 1999.

The preliminary investigation against the applicant was partially terminated on 8 October 1999 as a result of its findings pertaining to the size and currency of the stolen amount. The only outstanding charge against the applicant concerned common robbery of 5,000 German marks (approximately EUR 2,564).

An indictment against the applicant was filed with the Pazardzhik District Court on an undetermined date.

In a judgment of an unspecified date the Pazardzhik District Court acquitted the applicant, which was subsequently upheld, also on an unspecified date, by the Pazardzhik Regional Court.

2. The conditions of detention

Between 18 January and 1 July 1999 the applicant was detained at the Pazardzhik Regional Investigation Service. From 1 July to 27 July 1999 he was detained at the Pazardzhik Prison.

The applicant contended, in respect of both detention facilities, that there was (1) insufficient oxygen in the cells; (2) inadequate hygiene, the use of a bucket for the sanitary needs of the detained and the presence of parasites (fleas and wood worms), skin infections (scabies) and rodents (mice and rats); (3) insufficient natural light; (4) no special recreational area; (5) unhealthy food; (6) no access to literature, newspapers, magazines, radio or television; (7) no possibility for the applicant to meet with his attorney in private at his initiative; and (8) no possibility for maintaining an active correspondence.

3. Reports of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (“the CPT”)

The CPT visited Bulgaria in 1995, 1999, 2002 and 2003. The Pazardzhik Regional Investigation Service and the Pazardzhik Prison were visited in 1995.

(a) Relevant findings of the 1995 report (made public in 1997)

(i) General observations

The CPT found that most, albeit not all, of the Investigation Service detention facilities were overcrowded. With the exception of one detention facility where conditions were slightly better, the conditions were as follows: cells did not have access to natural light; the artificial lighting was too weak to read by and was left on permanently; ventilation was inadequate; the cleanliness of the bedding and the cells as a whole left much to be desired; detainees could access a sanitary facility twice a day (morning and evening) for a few minutes and could take a weekly shower; outside of the two daily visits to the toilets, detainees had to satisfy the needs of nature in buckets inside the cells; although according to the establishments’ internal regulations detainees were entitled to a “daily walk” of up to thirty minutes, it was often reduced to five to ten minutes or not allowed at all; no other form of out-of-cell activity was provided to persons detained.

The CPT further noted that food was of poor quality and in insufficient quantity. In particular, the day’s “hot meal” generally consisted of a watery soup (often lukewarm) and inadequate quantities of bread. At the other meals, detainees only received bread and a little cheese or halva. Meat and fruit were rarely included on the menu. Detainees had to eat from bowls without cutlery – not even a spoon was provided.

The CPT also noted that family visits and correspondence were only possible with express permission by a public prosecutor and that, as a result, detainees’ contacts with the outside world were very limited. There was no radio or television.

The CPT concluded that the Bulgarian authorities had failed in their obligation to provide detention conditions which were consistent with the inherent dignity of the human person and that “almost without exception, the conditions in the Investigation Service detention facilities visited could fairly be described as inhuman and degrading”. In reaction, the Bulgarian authorities agreed that the CPT delegation’s assessment had been “objective and correctly presented” but indicated that the options for improvement were limited by the country’s difficult financial circumstances.

In 1995 the CPT recommended to the Bulgarian authorities, inter alia, that sufficient food and drink and safe eating utensils be provided, that mattresses and blankets be cleaned regularly, that detainees be provided with personal hygiene products (soap, toothpaste, etc.), that custodial staff be instructed that detainees should be allowed to leave their cells during the day for the purpose of using a toilet facility unless overriding security considerations required otherwise, that the regulation providing for thirty minutes’ exercise per day be fully respected in practice, that cell lighting and ventilation be improved, that the regime of family visits be revised and that pre-trial detainees be more often transferred to prison even before the preliminary investigation was completed. The possibility of offering detainees at least one hour’s outdoor exercise per day was to be examined as a matter of urgency.

(ii) Pazardzhik Regional Investigation Service

The CPT established that the Pazardzhik Regional Investigation Service had fifteen cells, situated in the basement, and at the time of the visit accommodated thirty detainees, including two women in a separate cell.

Six cells measuring approximately twelve square metres were designed to accommodate two detainees; the other nine, intended for three occupants, measured some sixteen-and-a-half square metres. This occupancy rate was being complied with at the time of the visit and from the living space standpoint was deemed acceptable by the CPT. However, all the remaining shortcomings observed in the other Investigation Service detention facilities – dirty and tattered bedding, no access to natural light, absence of activities, limited access to sanitary facilities, etc. – also applied there. Even the thirty-minute exercise rule, provided for in the internal regulations and actually posted on cell doors, was not observed.

(iii) Pazardzhik Prison

In this report the CPT found, inter alia, that the prison was seriously overcrowded and that prisoners were obliged to spend most of the day in their dormitories, mostly confined to their beds because of lack of space. It also found the central heating to be inadequate and that only some of the dormitories were fitted with sanitary facilities.

(b) Relevant findings of the 1999 report (made public in 2002)

The CPT noted that new rules providing for better conditions had been enacted but had not yet resulted in significant improvements.

In most investigation detention facilities visited in 1999, with the exception of a newly opened detention facility in Sofia, conditions of detention were generally the same as those observed during the CPT’s 1995 visit, as regards poor hygiene, overcrowding, problematic access to toilet/shower facilities and a total absence of outdoor exercise and out‑of‑cell activities. In some places, the situation had even deteriorated.

In the Plovdiv Regional Investigation detention facility, as well as in two other places, detainees “had to eat with their fingers, not having been provided with appropriate cutlery”.

(c) Relevant findings of the 2002 report (made public in 2004)

During the 2002 visit some improvements were noted in the country’s investigation detention facilities, severely criticised in previous reports. However, a great deal remained to be done: most detainees continued to spend months on end locked up in overcrowded cells twenty-four hours a day.

Concerning prisons, the CPT drew attention to the problem of overcrowding and to the shortage of work and other activities for inmates.

B. Relevant domestic law and practice

Power to order pre-trial detention, grounds for pre-trial detention and appeals against detention before 1 January 2000

The relevant provisions of the Code of Criminal Procedure and the Bulgarian courts’ practice at the relevant time are summarised in the Court’s judgments in several similar cases (see, among others, Nikolova v. Bulgaria [GC], no. 31195/96, §§ 25-36, ECHR 1999-II; Ilijkov v. Bulgaria, no. 33977/96, §§ 55-59, 26 July 2001; and Yankov v. Bulgaria, no. 39084/97, §§ 79-88, ECHR 2003-XII).

COMPLAINTS

1. The applicant complained under Article 5 § 3 of the Convention that when he was arrested on 18 January 1999 he was not brought promptly before a judge or other officer authorised by law to exercise judicial power.

2. The applicant complained under Article 5 § 2 of the Convention that when he was arrested on 18 January 1999 he was not informed promptly of all the reasons for his arrest and of all the charges against him. He contended that he should also have been informed of the charge later brought against him on 9 June 1999.

3. The applicant complained under Article 5 § 1 (c) of the Convention that he was detained unlawfully on 18 January 1999. In particular, he argued that at the time the evidence against him was not sufficient to lead to the conclusion that he was guilty of an offence and contended that several domestic provisions were breached.

4. The applicant complained under Article 5 § 3 of the Convention that his detention was unjustified and excessively long.

5. The applicant complained under Article 5 § 4 of the Convention that the domestic courts did not examine all factors relevant to the lawfulness of his detention. In addition, he contended that his appeals were decided in violation of the requirement for a speedy decision under Article 5 § 4 of the Convention.

6. The applicant complained under Article 5 § 5 of the Convention that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5.

7. The applicant complained under Article 13 of the Convention that he had no effective domestic remedy for the alleged violations under Article 5 of the Convention. In particular, he argued that he did not have the right to appeal against the decisions of the courts dismissing his appeals.

8. The applicant complained under Article 3 of the Convention that he was subjected to inhuman or degrading conditions of detention while being detained at the Pazardzhik Regional Investigation Service and the Pazardzhik Prison. The applicant expressly referred to the Report to the Bulgarian Government on the visit to Bulgaria carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 26 March to 7 April 1995 which assessed the conditions of detention in the above facilities and found them to be inadequate.

THE LAW

A. Complaints under Article 5 §§ 3-5 of the Convention

The applicant made several complaints falling under Article 5 of the Convention, the relevant part of which provides:

“3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The applicant complained, inter alia:

(a) under Article 5 § 3 of the Convention that his detention was unjustified and of excessive length;

(b) under Article 5 § 4 of the Convention that in response to his appeal of 29 March 1999 the domestic courts did not examine all factors relevant to the lawfulness of his detention and that his appeals of 29 March and 1 July 1999 were decided in violation of the requirement for a speedy decision; and,

(c) under Article 5 § 5 of the Convention that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5.

The applicant also complained under Article 13 of the Convention that he did not have at his disposal effective domestic remedies for his Convention complaints. The Court considers that, as it relates to Article 5 §§ 1-3 of the Convention, this complaint should be understood as referring to the applicant’s alleged inability to effectively challenge his detention under Article 5 § 4 of the Convention and to the alleged lack of an enforceable right to compensation under Article 5 § 5 of the Convention. In addition, the Court observes that Article 5 §§ 4 and 5 of the Convention constitute lex specialis in relation to the more general requirements of Article 13 (see Nikolova, cited above, § 69 and Tsirlis and Kouloumpas v. Greece, judgment of 29 May 1997, Reports of Judgments and Decisions 1997‑III, p. 927, § 73). Accordingly, the Court must examine the complaint that the applicant lacked effective domestic remedies under Article 5 §§ 4 and 5 of the Convention.

The Government did not challenge the admissibility of the applicant’s complaints under Article 5 of the Convention.

The applicant reiterated his complaints.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

B. Complaints under Article 3 of the Convention in respect of the allegedly inhuman and degrading conditions of detention

The applicant complained under Article 3 of the Convention that he was subjected to inhuman or degrading treatment while being detained at the Pazardzhik Regional Investigation Service and the Pazardzhik Prison.

Article 3 of the Convention provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Government did not challenge the admissibility of these complaints.

The applicant reiterated his complaints.

The Court considers, in the light of the parties’ submissions, that the complaints raise serious issues of fact and law under the Convention, the determination of which requires an examination of their merits. The Court concludes therefore that these complaints are not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring them inadmissible has been established.

C. The remainder of the applicant’s complaints

The Court has examined the remainder of the applicant’s complaints as submitted by him. However, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that this part of the application must be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints concerning:

(1) that his detention was unjustified and of excessive length;

(2) that in response to his appeal of 29 March 1999 the domestic courts did not examine all factors relevant to the lawfulness of his detention and that his appeals of 29 March and 1 July 1999 were decided in violation of the requirement for a speedy decision;

(3) that he did not have an enforceable right to seek compensation for being a victim of arrest or detention in breach of the provisions of Article 5 of the Convention;

(4) that he was subjected to inhuman or degrading treatment while being detained at the Pazardzhik Regional Investigation Service and the Pazardzhik Prison;

Declares the remainder of the application inadmissible.

Claudia Westerdiek Peer Lorenzen
Registrar President